Will Contest FAQ in Harrisonburg
DETAILS ABOUT CONTESTING A WILL IN VIRGINIA
To contest a will in Virginia, you need to follow these three steps:
- Confirm that you are an "interested person" by legal definition
- Determine whether or not you have grounds to contest the will
- Submit a bill explaining your interest and reason for challenging the will (Virginia Code section 64-1.88)
When you need help contesting a will or sorting out other disputes regarding estates, wills, or trusts, call Obenshain Law Group. We have served a wide variety of clients in contesting wills, defending will contests, and ensuring loved one’s property is divided appropriately and fairly after death. If you are involved in a will contest or have questions about the validity of a will, let us help.
Call (540) 318-7360 today to speak to a will contest lawyer and schedule your free consultation.
On what basis can I contest a will?
You may contest someone’s will for any of the following reasons:
- The will failed to comply with the statutory requirements for it to be valid, often an issue where wills are handwritten (in whole or in part), unsigned, not witnessed, or not notarized
- Breach of fiduciary duty, for example where a power of attorney does something in their own interest instead of in the interest of the person they are supposed to be serving
- Duress (threat of violence, abuse, or other unethical, coercive action)
- Fraud that affected the details of the will
- Forgery
- Misrepresentation
- Someone used undue influence to ensure that the terms of the will benefited them
- The person who made the will can be proven to have been mentally ill, incapacitated, or otherwise lacked the capacity to make a will
Can Stepchildren Contest a Will?
It is possible for stepchildren to contest a will. In order to do so, they must have been a named beneficiary of a previous will. However, this does not mean a challenge will be successful if the requirements for a will contest are not met.
Is my loved one’s will legitimate?
Typically, in order to be valid, your deceased family member’s will must be dated and signed by the testator (the deceased) and by two or more witnesses who were present and signed at the same time as the testator.
Is a Handwritten Will Legal in Virginia?
Handwritten wills can be considered legitimate and enforceable in Virginia, but there are a few requirements. First, a handwritten will must be wholly handwritten by the testator (the deceased). Second, it needs to be signed by the testator. Third, there must be two witnesses who can testify that the testator wrote the will. If any of these are in question, the will can be contested. If you are concerned about the validity of your loved one’s will, call Obenshain Law Group today for help.
Disputes over handwritten wills often come up when a loved one wrote a note at home without legal advice or tried to make last-minute changes during an illness. Family members may worry that the handwriting is not genuine, that someone else added language to the document, or that the person who wrote it did not fully understand what they were signing. We can help you gather copies of earlier wills, medical records, and handwriting samples so that you have a clearer picture of whether a Virginia court is likely to honor the handwritten document or give more weight to a prior, formal will.
Can children born after the will was made still claim a portion of the deceased’s estate?
Time Limit to Contest a Will
The time limit for many will contests is one year from the date a will is probated (filed in the clerk of court’s office). However, there are circumstances that may shorten that time limit. This filing period may also be extended for certain minors and individuals who are incapacitated.
Any interested party can appeal the clerk's probate order within six months of entry if the will has been admitted to probate. Va. Code Ann. § 64.2-445.
If the court admits the will, an interested party who has not appeared before the court or clerk before may file a complaint within one year following the entry of the court's order.
A publication proceeding against an interested person has a two-year deadline. Va. Code Ann. § 64.2-448.
A lawyer will also need time to conduct an investigation and to meet with you, so it is important for you to seek assistance and talk to a will contest lawyer as early as possible. While you may have up to a year to contest a will after death, it is important to contact a lawyer as soon as possible to help ensure important deadlines are not missed.
Key deadlines to keep in mind include:
- Appeal of clerk’s order. An interested person may appeal the clerk’s order admitting a will to probate within six months.
- Complaint after court admission. An interested person who did not previously appear may have up to one year after the court’s order admitting the will to file a complaint.
- Publication proceedings. If an interested person was served by publication, Virginia law may allow up to two years to challenge the probate order.
- Special rules for minors and incapacitated individuals. Certain extensions may apply when the interested person is a minor or is legally incapacitated at the time of probate.
What To Expect In A Virginia Will Contest
Knowing what the process looks like can make it less overwhelming to decide whether to move forward with a challenge. In a typical Virginia will contest, there is an initial review of the will and related documents, followed by the filing of the complaint in the appropriate circuit court. After that, the case moves through discovery, where each side exchanges information, and then toward negotiations, hearings, or a trial. Understanding these stages can help you prepare for the time commitment and emotional energy involved.
When a case is filed in the circuit court that serves Harrisonburg or the surrounding counties, the court will set deadlines for exchanging documents, scheduling depositions, and filing any motions. During this period, you may be asked to provide information, answer written questions, or give sworn testimony. We help clients get ready for each step, explain what the court expects, and work to keep the process as organized as possible so that you are not surprised by the next development in your case.
Many will contests resolve before a full trial, either through negotiated agreements or mediation. In those situations, families can reach a resolution that addresses their concerns while avoiding the uncertainty of a courtroom decision. If a case does go to trial, a judge or jury in the local court will hear testimony, review exhibits, and decide whether the will should stand. Throughout the process, we stay in close contact, answer questions, and help you weigh options so that every step you take is thoughtful and informed.
Do I Have To Live In Virginia To Challenge A Will Filed Here?
You do not have to live in Virginia to challenge a will that has been filed in a Virginia court, but the case itself must be brought in the court that has jurisdiction over the estate. If your loved one lived or owned property in the Harrisonburg area, that may mean filing in the circuit court that serves that locality. Out-of-state heirs often work closely with local counsel to handle filings, court appearances, and communication so they do not have to travel for every step of the process.
Can A No-Contest Clause Stop Me From Raising Concerns?
A no-contest clause is language in a will that attempts to penalize beneficiaries who challenge the document, often by reducing or eliminating their inheritance if they file a contest and lose. These provisions are treated carefully under Virginia law, and their effect depends on the specific wording and the circumstances of your case. Before deciding whether to move forward, it is wise to have the will and the clause reviewed so you understand the risks, potential benefits, and any alternatives to a formal contest.
What Information Should I Gather Before Meeting With A Lawyer About A Will Contest?
Before your first meeting, it is helpful to collect as much relevant information as you reasonably can. That may include copies of the current will and any earlier versions, medical records or summaries from around the time the will was signed, and any letters, emails, or notes that discuss your loved one’s intentions. You may also want to write down a timeline of important events and list the names of people who were involved in your loved one’s care or financial affairs, as this can give a clear starting point for evaluating whether a contest makes sense.
How can I afford to challenge a will?
Many people hesitate to pursue legitimate will contests because they assume legal representation is too expensive. We believe access to justice should not depend on your current financial situation, and we remove this barrier by working on a contingency fee arrangement. This means if your case does not result in a successful outcome, you do not owe us attorney fees. Additionally, our initial consultations are free, so you can explore your options without the stress of a new expense.
Common cost-related questions we address include:
- How legal fees are structured. We explain when contingency, hourly, or mixed arrangements may be available for a Virginia will contest lawyer.
- Which expenses the estate might cover. In some situations, certain costs of litigation can be treated as administration expenses.
- When experts are truly necessary. We discuss when medical, financial, or handwriting experts may add value and when they may not be needed.
- How to budget for the process. We help you think through timing so potential expenses are less disruptive to your day-to-day life.
I am Executor of a will that has been challenged; how can I afford to defend the suit?
We will carefully evaluate your case and, if we can handle your case, we will discuss handling it on an hourly basis, which you may be able to pay as an administration expense out of the assets of the estate. We are also able to discuss alternative fee arrangements including a contingency fee where we receive a legal fee only if we are successful in defending a will contest or negotiate a favorable settlement on your behalf.
How long can contesting a will take?
Contesting a will in Virginia can take up to one year. For everything you need to know about contesting a will in Virginia, click here.
Factors that can influence how long your case takes include:
- Number of heirs and interested persons. More parties can mean more schedules to coordinate and more disputes to resolve.
- Complexity of assets. Estates that include businesses, out-of-state property, or disputed valuations often require additional time.
- Degree of disagreement. Cases with sharp factual disputes or allegations of misconduct may involve more extensive discovery.
- Court calendar. Hearing and trial dates depend in part on the docket of the circuit court handling the estate.
If you have questions about contesting or defending your loved one’s last will and testament, we can help. Call (540) 318-7360 today to schedule your free, confidential consultation with a Virginia will contest attorney.
